Drafting
legislation to expand federal power has become a popular sport in Washington.
It is no longer necessary for a member to have proof of a genuine problem,
problems can be declared even without proof of their existence or upon
the prediction that they will soon be upon us. Fiction is just as good
a basis for drafting legislation as fact, or so most members who play
the legislation game see it.

The
way it works is simple. If you are a member of the House of Representatives
or the Senate, you receive a steady stream of lobbyists into your office
weekly. Or, if you are particularly anxious to build a new constituency,
you can simply contact a leading figure and invite them in to see you.
Most often, however, members just sit and wait because soon folks will
come knocking. You then decide which of those visiting has the greatest
money to give to you or the greatest popular pull or, preferably, both.

You
then have your staff meet with the folks who come to visit first (no
politician likes to tell constituents that a solution does not exist
for their problems). The staff consists of young college age kids, often
on unpaid or low paid internships, who usually have very little idea
about the world beyond their interest in coming to Washington, D.C.
for a semester or two. These kids listen often to professionals, lobbyists
and lawyers and executives who call for regulation. Most often they
call for regulation to protect their own economic interests but say
it is for a public good.

The
staff then assembles a brief for the member. The chief of staff edits
it and summarizes it. The member reads the thing (or not) but decides
which of the issues to champion. The member is often not much more savvy
when it comes to American history, the Constitution, or the law than
his interns, and is often more interested in securing re-election and
campaign contributions than doing anything for anyone else. So as the
member listens to the briefing, he is variously musing: If I help these
people will they give me money? If I help these people will I be able
to crow about doing something that I know will bring me money and support?
If I help these people will it offend any of those who give me money
now or who support me?

Then
after the briefing the member may say, okay, let’s draft the bill.
Does he then draft it? No, not ordinarily. Often the party seeking the
bill already has it drafted for him. He then takes the bill, submits
it to legislative counsel working for the House and Senate, and they
translate it into a final bill with the member’s name on it. The
member may then circulate it among colleagues for them to sign onto
it.

The
member may then introduce it on the floor of the House or Senate and
issue press releases, crowing about his or her effort to stem some perceived
or trumped up horror. The constituent group likewise crows about the
member. The media covers it, particularly the local media. The member
gets new campaign contributions. The member gets a new constituency
to shore up his or her chance for re-election.

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The
bill gets assigned to a committee where it usually dies. The member
ordinarily knows that will happen. He still gets credit for the bill
from the special interest groups and can tell those groups that they
must marshal support for the measure. He may give it little or no support
himself, signaling to colleagues that he really does not care, or he
may try to drive it through. The degree of action on his part is rarely
seen by constituents unless they are big concerns with a lobbying presence
on the Hill. Then, if he has introduced the measure he has to appear
supportive of it, or they will lose faith in him and move to another
“champion” to move the legislation through the Congress.

This
is democracy. The problem with the present state of it is that there
is no brake to stop the advance of government as there once was. Constitutional
doctrines that used to block government growth have largely been eschewed
to let government grow. So if the law will destroy businesses, put people
out of work, or cause an agency of the government to violate life, liberty,
or property rights, it marches on nevertheless.

Now
very few bills ever pass the House or the Senate and fewer still do
without significant amendment. But modern bill making involves amendments
that often place onto a popular bill far less popular special interest
measures. The effect is to create a train with a significant upfront
engine that the public clamors for and many often shabby cars linked
on behind that select special interests desire.

In
the absence of constitutional scruples, respect for rights to life,
liberty, and property, and appreciation for the need for separation
of powers, modern law making moves government in the direction of ever
greater control over all private affairs. Bit by bit, day by day new
laws and the thousands of regulations promulgated under them by the
agencies eat away at liberty until there is nothing left but the crumbs.

The
great weight of this movement toward relying on federal law to resolve
every problem, to advance every interest, and to satisfy every demand
is to bring under the monopoly control of the state the myriad of things
that used to function privately. To say that this is a constitutional
dereliction of duty is to put it mildly. This is a rejection of a limited
federal republic in favor of a government of unlimited powers. Because
those powers are vested principally in the unelected federal bureaucracy,
it is a rejection of a limited federal republic in favor of an unlimited
bureaucratic oligarchy.

We
may rightly view almost all federal legislation as the nemesis of liberty.
As lawmaking becomes more commonplace, liberty becomes scarcer. We spend
more of our time not working for others but working for the state. The
effect is to transform each of us into a public servant. The result
is to politicize everything private.

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It
should come as no surprise to us, then, that almost every major industry
maintains an army of lobbyists in Washington who pursue legislative
initiatives to protect market leaders from competition. This is the
legislation game and so long as most members of Congress play it there
will be those who join in the game. Those who play benefit; the rest
of us suffer, and our Constitution of Liberty gives way to a Constitution
of Tyranny.

Jonathan
W. Emord is an attorney who practices constitutional and administrative
law before the federal courts and agencies. Congressman Ron Paul calls
Jonathan “a hero of the health freedom revolution.” He has
defeated the FDA in federal court a remarkable six times, four times on
First Amendment grounds. He is the author of The
Rise of Tyranny.

This is democracy.
The problem with the present state of it is that there is no brake to
stop the advance of government as there once was. Constitutional doctrines
that used to block government growth have largely been eschewed to let
government grow.